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Gary Lee Rock v. Zimmerman

filed: August 8, 1991.

GARY LEE ROCK, APPELLANT
v.
LEROY S. ZIMMERMAN; JOHN F. NELSON, DISTRICT ATTORNEY OF FRANKLIN COUNTY



Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil No. 88-02011.

Mansmann and Alito, Circuit Judges, and O'Neill, District Judge.*fn* Samuel A. Alito, Circuit Judge, dissenting.

Author: Mansmann

Opinion OF THE COURT

In this appeal from the denial of a writ of habeas corpus, Pennsylvania state prisoner Gary Rock asks us to overturn his first degree murder convictions for the reason that jury instructions given at his trial were constitutionally defective. We find that the jury instruction at issue, that "the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed," violated Rock's right to due process under the fourteenth amendment. We further find, upon reading the charge as a whole, that this jury instruction does not constitute harmless error under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), and Yates v. Evatt, U.S. , 111 S. Ct. 1884 (1991). Thus, we will reverse the order of the district court and remand for the district court to grant the writ.

I.

A.

We set forth in detail the evidence and theories brought out during Rock's second state court trial*fn1 because it is this evidence which bears upon allegations of error in the jury charge.

On July 2, 1977, after setting fire to his home and shed, Rock took the lives of Wilbur Brookens and James Cutchall when they came to his aid. The evidence was uncontroverted that Rock purchased ammunition earlier in the day, sighted in the scope of his .300 Savage rifle, and fired off four shots at a target before he began to ransack his home and shed. He then doused these structures with gasoline and set them on fire. Wilbur Brookens, a neighbor, noticed the smoke and approached on foot. He was killed when Rock fired a single bullet into his chest. Similarly, Rock shot James Cutchall, the Fayetteville volunteer fire department chief, when he drove into Rock's lane. The cause of death was a bullet wound to Cutchall's head. A pathologist who conducted the autopsies testified that Brookens died as a result of damage to his heart and left lung and a resulting massive hemorrhage. Cutchall's death resulted from a bullet wound to the left side of his skull that caused destruction of the brain and an intracranial hemorrhage.

Rock fired several shots at a fire engine which then approached the scene, wounding a fire fighter and missing several others. Dressed in fatigue trousers and wearing his Marine dog tag, Rock then fled into the woods and mountains behind his home, carrying his rifle and a shotgun, ammunition for both weapons and two empty canteens. When he was apprehended later that day, Rock inquired of police, "How many did I kill?" Rock disputes the testimony of one officer that Rock also stated at the scene of his capture, "I saw two fall." (Rock testified that he believed he was shooting at moving objects rather than at people.)

Rock presented defenses relating solely to intent, conceding that he had fired the shots that killed two and injured other victims. To the charges of first degree murder, Rock asked the jury to find him not guilty by reason of insanity, or alternatively, guilty of third degree murder by reason of diminished capacity. The psychiatrist who testified for the defense opined that Rock suffered from an acute psychotic breakdown from the time he began to ransack his home to his flight into the mountains.

The Commonwealth conversely argued to the jury that Rock's actions, while irrational, displayed deliberate preparation: Rock purchased ammunition, sighted in his rifle, set the fire and waited for the predictable response of the victims. Thus, the alleged deliberate nature of Rock's actions warranted guilty verdicts of first degree murder for the killings of Brookens and Cutchall.*fn2

The trial judge then delivered his charge to the jury. Because we cannot review the specific allegations of error in isolation, we set forth here (adding our own emphasis) all the relevant portions of that jury charge. During its initial charge to the jury, the trial court provided the following specific instruction concerning intent:

We should at this point also tell you the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed.

This is a presumption of fact based on common knowledge that such use is almost certain to be fatal. Every person is presumed to intend the natural and probable consequences of his act, but being a presumption of fact it may be rebutted by other circumstances in the case; and whether it is so rebutted is a question for you to decide.

In other words, members of the jury, you may, if you see fit, find an intent to kill existing from the fact that the defendant did use the 300 Savage rifle; that he did fire it; that he did strike Mr. Brookens in the chest and blow out his heart; and did fire it again and struck Chief Cutchall in the skill and damaged his brain causing death in each case. These things you may, if you see fit, consider in determining whether or not there is an intent to kill.

If you find the existence of an intent to kill, then you must also determine whether the presumptions of fact that I have just referred to have been rebutted by other circumstances in the case and whether they have been so rebutted is entirely a question for you to decide as the triers of fact. (Emphasis added).

In addition to these specific instructions, the trial court also gave to the jury these more general instructions, which the Commonwealth suggests are "curative:"

The determination of all of the facts in this case, . . . is exclusively for the jury. . . . As to the facts of the case, you are the exclusive judges.

If, however, your judgment of what the evidence proves and the inferences to be drawn from the facts established to your satisfaction differs from what is suggested by the attorneys or by the Court, you will follow your own judgment and not the suggestion of anyone else, including the attorneys or the Judge.

Furthermore, a defendant is presumed innocent throughout the trial and unless and until you conclude, based on a careful and impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt; and of course, that applies as to each of these matters that you will be considering. . . . It is the Commonwealth that always has the burden of proving each and every element of the crime charged . . . and that the defendant is guilty of that crime or crimes beyond a reasonable doubt. The person accused of a crime or crimes is not required to present evidence or prove anything in his own defense.

If a person intends to kill, the intention is to be gathered from all of the circumstances surrounding the act, as from the character and type of weapon used, from the part of the body on which it is to be used, and what was said at the time or immediately after by the person committing the act, and all of the circumstances that throw any light on the intention.

After eight hours of deliberation, the jury returned with three questions*fn3 including "Explain intent in regards to the hitting of a vital organ." The trial court responded with the following supplemental charge:

Then you inquired as to the intent in regard to the hitting of a vital organ; and if you will recall, I told you in the charge on first-degree murder that the intentional, unlawful, and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that an intent to kill existed. This is a presumption of fact based on common knowledge that such use is almost certain to be fatal.

Every person is presumed to intend the natural and probable consequences of his act; but being a presumption of fact, it may be rebutted by other circumstances in the case, and whether it is so rebutted is a question for you to decide.

So what the law is on the subject is that if Mr. Rock intentionally, without justification, that means lawfully, did use a deadly weapon against a vital part of the body of the victim or victims, then that gives rise for you to consider that there is a presumption of fact that an intent to kill existed. Because we all know that such use is almost certain to be fatal.

Defense counsel immediately objected to that instruction, stating, "I think that's an improper instruction because it shifts the burden of proof from the prosecution to the defense." Less than one and one-half hours later, the jury returned with guilty verdicts to the two counts of first degree murder, four counts of attempted murder and two counts of aggravated assault.

After the trial judge denied Rock's extensive post-trial motions -- including the due process challenge to the jury charge -- the trial judge sentenced Rock to two consecutive life sentences to run concurrently with a 26-60 year sentence on the attempted murder and aggravated assault counts. Rock appealed to the Superior Court of Pennsylvania, which affirmed in an unpublished memorandum opinion. Commonwealth v. Rock, No. 191 Harrisburg (Apr. 16, 1987). The Supreme Court of Pennsylvania denied Rock's petition for allocatur. Therefore Rock has properly exhausted all of his state court remedies. See Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984) (claim raised on direct appeal satisfies exhaustion requirement).

In his petition for a writ of habeas corpus, Rock raised three issues that he continues to press in this appeal from the district court's denial of the writ. Because we reverse the denial of the writ on the first issue raised, we need not resolve the merits of Rock's challenges to the denial of his motion for a change of venue and the more severe sentence imposed following retrial.*fn4

II.

As an initial matter, we must determine whether Rock preserved the due process issue by objecting to the charge with the requisite degree of specificity.*fn5 Pennsylvania law governs the requirements for preserving for appellate review an issue arising from a Pennsylvania criminal prosecution. Pa. R. Crim. P. 1119(b); Pa. R. A. P. 302; see Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986) (a general allegation of error does not satisfy required specific objection prior to the jury's deliberations resulting in waiver). The highest state court to address the issue, the Pennsylvania Superior Court, has ruled that Rock's objection at trial satisfied Pennsylvania law's criteria for preservation of issues. Commonwealth v. Rock, No. 191 Harrisburg, slip op. at 3 (Pa. Super. Apr. 16, 1987). Since we are bound by the state court's construction of its own law, we hold that Rock has preserved this issue. Mullaney v. Wilber, 421 U.S. 684, 691 (1975); see also Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983) (federal courts must accord a presumption of correctness to state court factfinding in habeas corpus proceedings).

With respect to our standard of review in this habeas action, we review the district court's conclusions of law under a plenary standard. Humanik v. Beyer, 871 F.2d 432, 435 (3d Cir.), cert. denied U.S. , 110 S. Ct. 57 (1989). As well, the legal question of whether the jury charge violated the due process guarantee of the fourteenth amendment implicates our plenary review.

III.

The Supreme Court has emphasized the constitutional imperative that the state prove beyond a reasonable doubt all the elements of the crime charged. In re Winship, 397 U.S. 358 (1970). In a series of cases, the Court has applied this principle to jury instructions and has refined the appropriate constitutional analysis to be applied to instructions that allegedly shift improperly the burden of proof on any element of the crime from the state to the defendant. See Rose v. Clark, 478 U.S. 570 (1986) (applying harmless error analysis to an instruction that violated Sandstrom); Francis v. Franklin, 471 U.S. 307 (1985) (differentiating between mandatory presumptions and permissive inferences and instructing review of entire charge for its impact on the jury); Sandstrom v. Montana, 442 U.S. 510 (1979) (ruling unconstitutional presumptive instructions that relieve the state of its burden to prove the element of intent).

The Supreme Court has instructed that we must first inquire into the nature of the presumption described in the challenged instruction. Sandstrom, 442 U.S. at 514; see Ulster County Court v. Allen, 442 U.S. 140, 157-163 (1979) (describing types of presumptions). This inquiry is informed by the notion that "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, 442 U.S. at 514. We look not to merely possible interpretations; the key is how a reasonable jury may have interpreted the challenged instruction. See Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 1197 (1990) (listing various formulations of the standard). Further, the possibility that the jury may not have relied on the instruction cannot save the charge; where one of alternative theories submitted to the jury is unconstitutional, the verdict cannot stand. See Sandstrom, 442 U.S. at 526 (citing cases).

In Sandstrom the jury was charged that "the law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513, 524. The petitioner conceded that he killed the victim, and presented as his sole defense that he did not do so "purposefully or knowingly" as required by the state statute. Id. at 512. The Court rejected the state's view that reasonable jurors may have construed the presumption to be permissive or rebuttable, because a reasonable jury could have "interpreted the presumption as 'conclusive'", or alternatively, "as a direction to find intent upon proof of the defendant's voluntary actions . . . unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than 'some' evidence -- thus effectively shifting the burden of persuasion on the element of intent." Id. at 517. Because a reasonable jury could have interpreted the instructions in a manner which would violate the defendant's due process rights, the instruction was deemed constitutionally infirm. Id. at 519 (citing Ulster). Because a conclusive presumption on the intent element of the crime would effectively eliminate intent as an element and "conflict with the overriding presumption of innocence . . . which extends to every element of the crime", see Morissette v. United States, 342 U.S. 246, 274-5 ...


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